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The NRA and the Supreme Court

Dennis Henigan is a smart lawyer who knows a great deal about gun laws and the Second Amendment. But one subject on which he is not an expert is the internal deliberations of the National Rifle Association. Reading Henigan to learn the secret motives of the NRA is akin to reading Richard Dawkins to learn insider secrets of the Vatican.

In an impressive display of spin, Henigan argues that the NRA did not want the Supreme Court to rule in favor of an individual right to own handguns for self-defense, because the NRA was afraid that such a ruling would undermine its efforts to frighten people about gun confiscation:

Indeed, this likely effect may explain why the NRA did not lead the legal effort against the D.C. law. Were it not for Bob Levy, there is no reason to believe a constitutional challenge to D.C.’s law would have been filed. Levy’s suit embarrassed the NRA into filing its own tag-along action, which was quickly dismissed for lack of standing. The NRA clearly preferred to press Congress to repeal the D.C. handgun ban, perhaps because it foresaw the unintended consequences of a Second Amendment victory. Any ruling that could diminish the NRA’s core strategy of keeping gun owners in a perpetual state of fear and anxiety about gun confiscation could be quite damaging to the organization’s interests.

A much simpler theory is what the NRA said in public, and was widely reported by the media: It felt confident about winning a case before the D.C. Circuit Court of Appeals, but unsure about what the Supreme Court would do. (Remember, the case was filed before Samuel Alito replaced Sandra Day O’Connor.)

And if there was going to be a Supreme Court case, the NRA obviously preferred the case be led by its longtime favorite lawyer Stephen Halbrook (who has a 4-0 record in the Supreme Court), rather than by the Levy-Gura-Neilly team, who had never handled a gun case before. (As it turned out, Gura and the others performed magnificently, with a superb brief, and a fine performance at oral argument.)

The NRA’s competitive case, by the way, was Seegars v. Ashcroft, filed by Halbrook on April 4, 2003. According to Henigan, the case “was quickly dismissed.” District Judge Reggie Walton ruled in favor of the defendant’s motion to dismiss on January 14, 2004; eight months can accurately be called “quickly” in geological time.

And by the way, the NRA tried to get that case to the Supreme Court. The NRA filed a cert. petition challenging the decision on standing, and asking the Supreme Court to grant cert. in order to uphold the Second Amendment: “This Court should grant this petition to vindicate the rights of the Petitioners and the thousands of other D.C. residents who seek nothing more than the ability to exercise their constitutionally guaranteed individual right to keep and bear arms.” Seegars v. Ashcroft, 297 F. Supp. 2d 201 (D. D.C. 2004), rev’d. in part & aff’d in part, 396 F.3d 1248 (D.C. Cir. 2005), reh. denied, 413 F.3d 1 (D.C. Cir. 2005), cert. denied, 126 S.Ct. 1187 (2006).

The other hole in Henigan’s theory is that the NRA had previously tried to bring the Second Amendment to the Supreme Court — as Henigan himself explains in his own book. In 1986, Congress banned the possession of machine guns manufactured after May 19, 1986 (18 U.S. Code §922(o)). The NRA sued, and won the case in the federal District Court in the northern district of Georgia. The District Court said that machine gun ban might raise constitutional problems under the Second Amendment. So the District Court construed the statute to avoid the constitutional question.

The ban had an exception which allowed:

a transfer to or by, or possession by or under the authority of, the United States or any department or agency thereof or a State, or a department, agency, or political subdivision thereof;

The District Court construed the exception to mean that any machine gun sale or possession which complied with the federal tax and registration provisions of the 1934 National Firearms Act counted as “under the authority of, the United States.”

The government appealed the case to the 11th Circuit, and argued that “under the authority, of the United States” meant that federal employees (or foreigners with a federal export license) could have machine guns, not that everyone could.

The 11th Circuit opinion began by explaining that “On January 6, 1989, the district court ruled that the Act allowed private persons, who comply with the National Firearms Act’s application and registration requirements, to make and possess machine guns.” The 11th Circuit adopted the government’s position (federal employees only). The Circuit Court declined to address the Second Amendment argument.

Henigan’s book omits the part of the story about the District Court decision. The book begins its description of the case with the 11th Circuit, and then Henigan accurately describes the next stage of the litigation:

Mr. Farmer was represented by lawyers [led by Stephen Halbrook] for the National Rifle Association, who then filed a petition for certiorari to the U.S. Supreme Court in that case. Incredibly, that petition argued again that the guns entitled to the greatest constitutional protection under the Second Amendment are military-style guns because they are militia weapons.

There were plenty of other cases where the NRA tried to get the Second Amendment before the Supreme Court. In 1981, the Chicago suburb of Morton Grove banned handguns. After the Seventh Circuit upheld the ban, cert. petitions were filed with the Supreme Court in three parallel cases. The NRA supported the cert. petitions for two of the litigants. Quilici v. Village of Morton Grove, 695 F.2d 261 (7th Cir. 1982), cert. denied, 464 U.S. 863; Reichert v. Village of Morton Grove, 464 U.S. 863, and Stengl v. Village of Morton Grove, 464 U.S. 863 (1983).

The Morton Grove ban, incidentally, is being repealed, as the city government does not want to defend the ban post­-Heller. Of the five Chicago suburbs with handgun bans, only Oak Park’s remains. Presumably, Chicago and Oak Park will fight all the way to the Supreme Court to defend their increasingly isolated bans.

A 1990 Supreme Court case involved federal powers over the state militia — in particular, the sending of the Minnesota National Guard to Central America, contrary to the wishes of the state governor. Perpich v. U.S. Department of Defense, 496 U.S. 334 (1990). The NRA’s Firearms Civil Rights Legal Defense Fund filed an amicus brief in the case, which explained that the militia means the armed populace and the Second Amendment protects individual rights.

And in 2003, the NRA filed an amicus brief in support of a cert. petition (although, realistically, the chances of cert. being granted were close to nil) for Silveira v. Lockyer, a challenge to California’s “assault weapon” law. The amicus brief’s Table of Contents states:

REASONS FOR GRANTING THE WRIT

I. Petitioners Have Article III Standing To Challenge The Assault Weapons Control Act

II. The Second Amendment’s Guarantee Of An Individual Right To Keep And Bear Arms Applies To State Action

III. The Second Amendment Guarantees An Individual Liberty Both To “Keep” and to “Bear” Arms

You can (and lots of gun activists do) argue about the NRA’s litigation strategy. But the claim that the NRA tried to keep the Second Amendment out of the Supreme Court because the NRA was afraid of winning is not a claim that deserves to be taken seriously.

Also from This Issue

Robert A. Levy, Cato Institute senior fellow in constitutional studies, was co-counsel to Mr. Heller in District of Columbia v. Heller, last month’s controversial Supreme Court case in which Washington, D.C.’s ban on gun ownership was ruled unconstitutional on the basis of a Second Amendment individual right to possess firearms. But what does Heller really imply for the future of gun rights and gun control in America? In this month’s lead essay, Levy asks and gives his answers to the questions on the minds of gun lovers and gun controllers alike. What gun regulations will now be permissible? Will the Second Amendment be “incorporated”? Did the court engage in “judicial activism”? And what’s next for the on-the-ground politics of gun control in Washington, D.C. and beyond? Levy’s tightly reasoned essay marks the beginning of the new American debate about guns after Heller.

In his vigorous reply to Levy’s lead essay, Dennis A. Henigan, Vice President for Law and Policy at the Brady Center to Prevent Gun Violence, argues that Heller was “a prototypical misuse of judicial power to advance an ideological agenda” based on Justice Scalia’s “transparently inconsistent and manipulative” reading of historical texts. Nevertheless, Henigan argues that “the Heller decision should prove to be a sharp disappointment to the gun lobby and other Second Amendment extremists” because “the lower courts are likely to interpret Heller as giving a constitutional green light to virtually every gun control law short of a handgun ban.” Moreover, Henigan argues, by decisively forbidding outright bans, Heller has defused the argument that gun control regulation sets us on a slippery slope to a society in which private citizens are not allowed to own guns. And therein lies the Heller paradox. By making Second Amendment rights clearer, the Court has made gun control easier.

In his reply, Second Amendment scholar David Kopel argues that the Constitution’s mention of “the” right to bear arms implies the right pre-existed the government, and that the point of the Second Amendment was to rule out its infringement. That pre-existing right, Kopel maintains, was “the right of having arms for personal defense,” and there is little evidence for a pre-existing militia right. Kopel agrees with Dennis Henigan that “the Heller decision … will probably not affect most gun laws in the United States, even assuming incorporation in the 14th Amendment,” but differs on the nature of “sensible” gun control, and offers a useful and informed discussion of current regulations. Regarding Washington, D.C.’s newly minted regulations, Kopel predicts that “the new law will be declared void by the D.C. Circuit Court of Appeals, and that the Supreme Court will deny cert.”

In his reply to Robert Levy’s lead essay, constitutional scholar Erwin Chemerinsky argues that Scalia’s majority opinion in Heller was based on a shoddy application of Scalia’s own judicial principles and “powerfully demonstrates that Justice Scalia’s constitutional rulings … ultimately are animated by his conservative politics.” According to Chemerinsky, by ignoring a long history of precedent and throwing into question “countless other statutes and ordinances,” the decision “showed that conservative rhetoric about judicial restraint is a guise that is used to oppose rights [the conservatives on the Supreme Court] don’t like.” Chemerinsky further criticizes the court for failing to clarify the level of scrutiny to be applied to gun regulation, and suggests that it should be the “reasonableness” test. Heller will be incorporated, Chemerinsky predicts, but will unlikely affect the coming elections.

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